NRL wants Optus sent to the sin bin

The National Rugby League has accused Optus of “playing with words" in its attempt to justify its football telecasts to internet and mobile phone customers.

The telco is embroiled in a legal dispute against the Australian Football League,
Telstra
and the NRL over its TV Now service, which lets phone and internet customers watch games with a delay of as little as two minutes.

The trial in the Federal Court before Justice Steven Rares wrapped up yesterday, but both sides made it clear this was not the end of the dispute.

An appeal is expected to be lodged by the losing party, and the judge even dispensed with leave to appeal to ­expedite the process.

The AFL, NRL and Telstra are claiming Optus has breached copyright. Telstra has a $153 million broadcast deal with the AFL to stream matches live over the internet from 2012 to 2016 and is negotiating a deal with the NRL.

Optus responded to letters from sporting bodies claiming it had breached copyright by taking them to court under the legislation to resolve the issue surrounding TV Now.

David Catterns, QC, for the AFL and Telstra, said an important issue was who “made" a copy of the broadcast, and whether a “time-shifting" exemption applied.

Optus has argued that the customer makes the recording, not the company, and avoids breach of copyright because a time shift exemption operates so people can record shows and watch it at a later, convenient time. This is permitted so long as they do so for “private and domestic" use only. The sporting bodies and Telstra dispute this.

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The NRL’s barrister, Noel Hutley, SC, told the court yesterday that Optus was “just playing with words".

“Clearly they made it . . . and no doubt spent large sums of money to set this up," he said.

It emerged that every time a customer made a request to record a program, four recordings were actually made to ensure the customer could view the program on any platform.

Justice Rares questioned how Optus could argue the customer made the recording, but had no concept of making four copies.

“You will not in your ordinary life be making copies of things you will never use," he said.

The AFL disputed Optus’s claim that the recordings were to be used only for private use.

“Despite the fact that there were unique recordings for each user, the streaming service and the Optus TV Now interface was available to all those members of the public who chose to avail themselves of it," the AFL said in its written submissions.